Al-Kateb v Godwin
Encyclopedia
Al-Kateb v Godwin was a decision of the High Court of Australia
, which ruled on 6 August 2004 that the indefinite detention
of a stateless person was lawful. The case concerned Ahmed Al-Kateb, a Palestinian man born in Kuwait, who moved to Australia
in 2000 and applied for a temporary protection visa
. The Australian Minister for Immigration's
decision to refuse the application was upheld by the Refugee Review Tribunal and the Federal Court
. In 2002 Al-Kateb declared that he wished to return to Kuwait or Gaza. However since no country would accept Al-Kateb he was declared stateless and detained under the policy of mandatory detention
.
The two main issues considered by the High Court were whether the Migration Act 1958 (the legislation governing immigration to Australia
) permitted a person in Al-Kateb's situation to be detained indefinitely, and if so, whether this was permissible under the Constitution of Australia
. A majority of the court decided that the Act did allow indefinite detention, and that the Act was not unconstitutional.
The controversy surrounding the outcome of the case resulted in a review of the circumstances of twenty-four stateless people in immigration detention. 9 of these people, including Al-Kateb, were granted bridging visas and allowed to enter the community.
in 1976, the son of Palestinian
parents. Because of his Palestinian background, he did not acquire Kuwaiti citizenship
despite being born in the country, and was thus considered a stateless person. In December 2000, Al-Kateb, travelling by boat, arrived without a visa
or passport
in Australia, and was taken into immigration detention under the provisions of the Migration Act 1958.
In January 2001, Al-Kateb applied for a protection visa, on the grounds that the United Nations
1954 Convention Relating to the Status of Stateless Persons obliged Australia to protect him. His application was rejected, a decision upheld by the Refugee Review Tribunal and the Federal Court of Australia. In June 2002, Al-Kateb stated that he wished to voluntarily leave Australia and be sent to Kuwait or to Gaza
. However attempts by the Government of Australia
to remove Al-Kateb to Egypt
, Jordan
, Kuwait, Syria
, and the Palestinian territories
(which would have required the approval of Israel
) failed, since no country would admit Al-Kateb due to his Palestinian background.
Al-Kateb then applied to the Federal Court for writ
s of habeas corpus
and mandamus
, demanding that immigration officials comply with section 198 of the Migration Act which required that Al-Kateb, because his application for a visa had been rejected, be removed from the country "as soon as reasonably practicable". However, those applications were dismissed. Al-Kateb then sought writs of habeas corpus and mandamus on the basis that he was being unlawfully detained, and although the judge found that "removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future", his application was dismissed. However, a case with substantially identical facts, decided twelve days later by a Full Court of the Federal Court, resulted in the release of another detainee, Akram Al Masri.
Finally, Al-Kateb appealed the decision against him to a Full Court of the Federal Court, hoping that the reasoning applied in the Al Masri case (which was factually similar to his situation) would be applied to him. The appeal was removed into the High Court at the request of the then Attorney-General of Australia
Daryl Williams
, under provisions of the Judiciary Act 1903
. Pending the appeal, Al-Kateb was released in April 2003, by consent of all parties, on an interlocutory
order by the Federal Court. The case was argued alongside two other cases which also concerned immigration detention and hearings were held on 12 November and 13 November 2003.
The respondents in the case were all members of the Government of Australia, including two officials in the Department of Immigration, Multicultural and Indigenous Affairs, and the then Minister for Immigration, Phillip Ruddock, and were represented by the Solicitor-General of Australia
, David Bennett. The first named respondent, Philippa Godwin, was Deputy Secretary of DIMIA. Al-Kateb was represented by Claire O'Connor, from the Legal Services Commission of South Australia.
One possible interpretation of these provisions is that unlawful non-citizens should be kept in detention for as long as necessary to remove them, and that if removing them never became practicable, that they would be detained until death. In contrast, Al-Kateb argued that the provisions only allowed unlawful non-citizens to be detained while removal was a practical possibility, and that if removal was not a practical possibility, then they should be released from detention, at least while it remained impractical.
Much of the argument for Al-Kateb centred on the fact that he was a stateless man. Kateb's lawyer, O'Connor, noted that the provisions in the Migration Act about refugee
s were based on the United Nations Convention Relating to the Status of Refugees, both of which overlooked the situation of stateless persons. Several exchanges during the hearings illustrated the way in which the usual processes of the immigration system were not adapted well, if at all, to dealing with stateless people. In one such exchange, O'Connor referred to Al-Kateb both by his name and by the identifier used on the formal documents, "SHDB" (in matters concerning asylum seekers, names are usually suppressed in order to prevent persecution should they return to their country of origin). After some debate about whether to suppress Al-Kateb's name, Justice Kirby said that "there often is a very good reason... because people suffer great risks if their name goes on the Internet that that will become known to the country that they want to avoid," to which Al-Kateb's lawyer replied, "That is correct, but, of course, with Mr Al-Kateb there is no country."
The respondents argued that the provisions required that unlawful non-citizens be detained until their removal, and that the purpose of removal, on which the detention was founded, did not cease to exist just because it was not practicable in the foreseeable future to carry out that purpose. They made what was referred to as "the 'never say never' proposition", that although securing a person's removal or deportation from Australia may be difficult, and "often it takes years of diplomatic negotiation before a country is prepared to accept someone... it is very hard to imagine a case where the purpose of removal or deportation is one that can never occur." Although the respondents did not challenge the finding of fact in the Federal Court that there was no real possibility of Al-Kateb's removal in the foreseeable future, they argued that the test applied to reach that decision "fails to take into account... the difficulties and the fact that things can change."
, or detention for quarantine
purposes. Courts in Australia have also held that, generally, detention of non-citizens for immigration purposes is also valid.
In this situation, the court had decided in previous cases that immigration detention, for the purposes of processing and removal, did not infringe on Chapter III. Al-Kateb argued that if indeed the provisions of the Migration Act extended as far as to allow the indefinite detention of people like him, then it would have gone beyond those valid purposes and would infringe Chapter III. That is, non-judicial detention is permitted for the purposes of facilitating the removal of unlawful non-citizens, and if the prospects of removal are remote or impracticable for the reasonably foreseeable future, then the detention can no longer be considered to be for the purpose of removal. Al-Kateb's argument in this respect relied on a decision of the Federal Court in another case, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, in which a Full Court of the Federal Court found that a person in a very similar situation to Al-Kateb was entitled to be released.
The respondents focused on the case in which this system of exceptions was first articulated, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs. The concept of detention as an exclusively judicial function was clearly articulated by only three judges out of seven, Brennan
, Deane
and Dawson
, and although in later cases that central concept was generally agreed with, their list of exceptions was not. The respondents focused on Justice Gaudron
's decision in Chu, in which she said:
The respondents also noted that Gaudron made similar comments in the Stolen Generations case
, which also considered non-judicial detention in the context of Aboriginal children who were forcibly removed from their parents' care
. For this reason and others, they argued that the power to detain people for the purposes of criminal trial and punishment (as opposed to detention generally) was clearly a judicial function, but there is no general rule and other powers to detain may not offend Chapter III.
, Hayne
, Callinan
and Heydon
forming the majority
, although Justice Heydon agreed entirely with Justice Hayne, and offered no extra reasoning. Chief Justice
Gleeson
and Justices Gummow
and Kirby dissented
, finding instead that the Migration Act should not be interpreted to permit indefinite detention.
He said that because the removal or deportation of people always involves some degree of uncertainty, then the interpretation of the relevant provisions in the Migration Act could not proceed on the assumption that removal is always possible. He concluded that:
Justice McHugh stated simply that the language of the sections was not ambiguous, and clearly required the indefinite detention of Al-Kateb. He said that the requirement that people be removed "as soon as reasonably practicable" was directed at limiting the duration of detention to as little as necessary, but it did "not mean that the detention... is limited to a maximum period expiring when it is impracticable to remove or deport the person."
Chief Justice Gleeson, in dissent, said that in interpreting legislation, the courts "do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language". He concluded that the provisions requiring that unlawful non-citizens be detained were ambiguous in that in a situation such as Al-Kateb's, where it became impossible to fulfil the purpose for which he was detained, the law was not clear as to whether the result is that the detention should be suspended until the purpose becomes possible again, or that the detention should continue indefinitely. The Act did not deal with a situation like Al-Kateb's. Gleeson said:
Accordingly, he found that a proper construction of the provisions of the Act would not permit Al-Kateb's detention to continue indefinitely.
Justice Callinan, who was in the majority, also discussed the purpose of detention, in obiter dicta
. He said that detention of non-citizens for the purposes of deportation may not be the only form of detention that would be within the federal parliament's aliens power, rather "it may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable."
Justice Hayne concluded that the detention scheme in the Migration Act did not contravene Chapter III because, fundamentally, it was not punitive. The Act did not make being in Australia without a visa an offence (although it had been in the past), and in reality he considered the mandatory detention scheme to be not that different from a system in which all people were prevented from entering Australia without permission at all.
Justice McHugh also emphasised that immigration detention was not punitive, saying:
McHugh suggested that detention for a non-punitive purpose could still offend Chapter III if it prevented a court "from determining some matter that is a condition precedent to authorising detention." However, that was not the case here.
In dissent, Justice Gummow recognised that "the focusing of attention on whether detention is 'penal or punitive in character' is apt to mislead", and emphasised the purpose of detention as the fundamental criterion by which non-judicial detention was allowed in previous cases. He said that "it cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III."
's final years on the court, he and Justice Kirby expressed differing views on constitutional interpretation, and particularly on the role of international law
and principles of human rights
in that process. In this case, the two judges continued that debate.
Justice McHugh drew analogies between the legislation at issue in the case, and previous legislation which had authorised indefinite administrative detention, such as the arrangements under the War Precautions Act 1914
. Regulation
s made under that and other acts allowed the internment
of several thousand people, including German Australian
s during World War I
and Japanese Australian
s during World War II
. McHugh noted that those arrangements had been challenged, and upheld, in the High Court (for example in the 1915 case of Lloyd v Wallach), and emphasised that at no time had anyone questioned that detention for protective purposes, as opposed to punitive purposes, would conflict with Chapter III. He concluded that although the situation at hand was "tragic", the courts were not at liberty to question the propriety of decisions made by the Parliament of Australia on moral or human rights grounds, given the absence of a bill of rights
in Australia.
Justice Kirby retorted that "'Tragic' outcomes are best repaired before they become a settled rule of the Constitution." He also drew a historical analogy, referring to the 1951 Communist Party case
where the High Court rejected attempts by the Menzies
government to outlaw the Australian Communist Party
. After noting McHugh's recent praise of the decision in a speech, Kirby said:
Referring to the cases in which the High Court had upheld the wartime legislation allowing indefinite administrative detention, Kirby said that equivalent decisions in other countries had come to be regarded as embarrassing and incorrect, and should be likewise regarded in Australia. While conceding that the scope of the Parliament's powers with respect to defence will be greater in wartime than in peacetime, Kirby said that they could not extend so far as to displace fundamental constitutional requirements such as those in Chapter III.
Finally, Kirby also suggested that there was much scope for expanding the reach of the limitations on legislative and executive power imposed by Chapter III, and drawing on another paper by McHugh, argued that this ought to extend to the protection of due process
rights as implicit constitutional rights, in the absence of an explicit bill of rights.
As a result of the decision, Al-Kateb had to return to immigration detention. Claire O'Connor, Al-Kateb's lawyer, said that "The effect of this decision is that [Al-Kateb] will be locked up until a state of Palestine is created or some other Middle Eastern state is willing to have him. It's taken 51 years so far. I'm not holding my breath."
The decision sparked much controversy about the scope of the mandatory detention laws. Along with the two other immigration detention decisions handed down on that day, the case prompted several political leaders, including the then Federal President of the Australian Labor Party
Carmen Lawrence
, and Australian Democrats
leader Senator Andrew Bartlett
, to call for an Australian bill of rights. The executive director of the Sydney Institute
, Gerard Henderson
, said that the case demonstrated "the need for empathy in public policy".
However, the case also aroused controversy about the court itself. David Marr
described the four to three decision as indicating a new division in the composition of the court, the "liberty divide", and noted that the result on the liberty question moved the court in the opposite direction to the contemporary trends of the Supreme Court of the United States
and the House of Lords
. Arthur Glass observed that the minority judges began their judgments from the position that indefinite non-judicial detention and the curtailment of personal freedom were troubling consequences, and noted that "as is not uncommon in statutory construction, where you start from is critical to where you end up." Marr accused the majority of deciding that "saving Australia from boat people
counts for more than Al-Kateb's raw liberty."
The controversy resulted in pressure on the new Immigration Minister Amanda Vanstone
, who agreed to review the cases of twenty-four stateless people in immigration detention, and ultimately granted bridging visas to nine people including Al-Kateb, allowing them to be released into the community. However, the conditions of the bridging visas did not permit holders to work, study, obtain social security
benefits or receive healthcare from Medicare
, and Al-Kateb remained entirely dependent on donations from friends and supporters to survive. Al-Kateb said of his situation, "We [are] just walking in a big detention. And we are all the time worried that they will send us back to detention again… It's like a death punishment."
In a 2005 speech to the Law Society of the University of Sydney
, Justice McHugh reiterated his view of the case as a tragic situation, and said that it was necessary for "the informed and impassioned" to seek reforms to legislation to protect individual rights, since the absence of a bill of rights limited the ability of the courts to protect rights. McHugh said that cases in countries such as the United Kingdom, in which courts had found that indefinite administrative detention was not lawful, were based on bills of rights or other instruments such as the European Convention on Human Rights
, and lamented that without such instruments, Australian courts are "not empowered to be as active as the Supreme Court of the United States or the House of Lords in the defence of the fundamental principles of human rights."
In response to McHugh's speech, Chief Justice Gleeson
said that the issue of whether or not Australia should have a bill of rights was a purely political one, and not a matter for the courts. Gleeson said that while he had personal political views on the matter, "It doesn't serve the community for a serving Chief Justice to enter that arena."
, with the legalistic
approach of the majority judges in contrast with the purposive
approach of the minority judges.
Christopher Richter suggested that the majority's legalistic approach, while yielding a workable construction of the provisions of the Migration Act, resulted in a dangerous situation in this case because the Act did not specifically address the situation of stateless persons, and the literal approach did not allow for gaps in the legislation to be filled.
Matthew Zagor suggests that there are various assumptions about the constitutional relationship between the branches of government implicit in these two different approaches. He argues that the majority, particularly Justice Callinan
, preferred the plain meaning of the Migration Act because for them "the key principle at play is simple: the Court should not frustrate Parliament's purpose or obstruct the executive." Zagor also comments on the irony
that the supposedly legalistic conclusion reached by the majority is at odds with a prior High Court decision led by Australia's most prominent legalist, Chief Justice Owen Dixon
, in which he implied a temporal limit onto World War II era legislation which also included a scheme of executive detention.
Some commentators, such as Juliet Curtin, have noted that both the majority and minority judgments, except for that of Justice Kirby, focused almost exclusively on Australian law and did not consider either international law or decisions from other common law
countries. Curtin argues that this attitude to international jurisprudence, which included decisions of the Supreme Court of the United States and of the House of Lords, demonstrates an "insular disregard for the principles of international law" on the court's part.
Several commentators have expressed the view that the decision has produced confusion and uncertainty with respect to constitutional restrictions on executive power in this area. Matthew Zagor notes that while the three minority Justices in this case, and Justice Callinan in another case, have expressed their support for the existing test in Chu Kheng Lim (that non-punitive detention is constitutionally permissible where it is "reasonably capable of being seen as necessary"), the test was not in fact used by the majority in this case to conclude that the detention here was permissible. He also points out that in later cases, only Justice Kirby seemed to uphold the 'vibe' of the Chu Kheng Lim test, with Chief Justice Gleeson
and Justice Gummow
attempting to separate the character of detention from its consequences (suggesting that detention which is punitive in effect may not necessarily also be punitive in character). Finally, Zagor argues that of the Justices who questioned the Chu Kheng Lim test, none were able to provide a coherent alternative to substitute for it.
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, which ruled on 6 August 2004 that the indefinite detention
Indefinite detention
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial. It is a controversial practice on the part of any government or agency that is in violation of many national and international laws, including human rights laws...
of a stateless person was lawful. The case concerned Ahmed Al-Kateb, a Palestinian man born in Kuwait, who moved to Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
in 2000 and applied for a temporary protection visa
Temporary protection visa
A Temporary Protection Visa was an Australian visa document introduced by the Howard Government on 20 October 1999, which was issued to persons who had been recognised as refugees fleeing persecution. The scheme was controversial, with the government claiming it was a necessary response to the...
. The Australian Minister for Immigration's
Minister for Immigration and Citizenship (Australia)
In the Government of Australia, the Minister for Immigration and Citizenship is responsible for overseeing the Department of Immigration and Citizenship....
decision to refuse the application was upheld by the Refugee Review Tribunal and the Federal Court
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. In 2002 Al-Kateb declared that he wished to return to Kuwait or Gaza. However since no country would accept Al-Kateb he was declared stateless and detained under the policy of mandatory detention
Mandatory detention in Australia
Mandatory detention in Australia concerns the Australian federal government's policy and system of mandatory immigration detention active from 1992 to date, pursuant to which all persons entering the country without a valid visa are compulsorily detained and sometimes subject to deportation.In the...
.
The two main issues considered by the High Court were whether the Migration Act 1958 (the legislation governing immigration to Australia
Immigration to Australia
Immigration to Australia is estimated to have begun around 51,000 years ago when the ancestors of Australian Aborigines arrived on the continent via the islands of the Malay Archipelago and New Guinea. Europeans first landed in the 17th and 18th Centuries, but colonisation only started in 1788. The...
) permitted a person in Al-Kateb's situation to be detained indefinitely, and if so, whether this was permissible under the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. A majority of the court decided that the Act did allow indefinite detention, and that the Act was not unconstitutional.
The controversy surrounding the outcome of the case resulted in a review of the circumstances of twenty-four stateless people in immigration detention. 9 of these people, including Al-Kateb, were granted bridging visas and allowed to enter the community.
Background to the case
Ahmed Al-Kateb was born in KuwaitKuwait
The State of Kuwait is a sovereign Arab state situated in the north-east of the Arabian Peninsula in Western Asia. It is bordered by Saudi Arabia to the south at Khafji, and Iraq to the north at Basra. It lies on the north-western shore of the Persian Gulf. The name Kuwait is derived from the...
in 1976, the son of Palestinian
Palestinian people
The Palestinian people, also referred to as Palestinians or Palestinian Arabs , are an Arabic-speaking people with origins in Palestine. Despite various wars and exoduses, roughly one third of the world's Palestinian population continues to reside in the area encompassing the West Bank, the Gaza...
parents. Because of his Palestinian background, he did not acquire Kuwaiti citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
despite being born in the country, and was thus considered a stateless person. In December 2000, Al-Kateb, travelling by boat, arrived without a visa
Visa (document)
A visa is a document showing that a person is authorized to enter the territory for which it was issued, subject to permission of an immigration official at the time of actual entry. The authorization may be a document, but more commonly it is a stamp endorsed in the applicant's passport...
or passport
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
in Australia, and was taken into immigration detention under the provisions of the Migration Act 1958.
In January 2001, Al-Kateb applied for a protection visa, on the grounds that the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
1954 Convention Relating to the Status of Stateless Persons obliged Australia to protect him. His application was rejected, a decision upheld by the Refugee Review Tribunal and the Federal Court of Australia. In June 2002, Al-Kateb stated that he wished to voluntarily leave Australia and be sent to Kuwait or to Gaza
Gaza
Gaza , also referred to as Gaza City, is a Palestinian city in the Gaza Strip, with a population of about 450,000, making it the largest city in the Palestinian territories.Inhabited since at least the 15th century BC,...
. However attempts by the Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
to remove Al-Kateb to Egypt
Egypt
Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
, Jordan
Jordan
Jordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
, Kuwait, Syria
Syria
Syria , officially the Syrian Arab Republic , is a country in Western Asia, bordering Lebanon and the Mediterranean Sea to the West, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest....
, and the Palestinian territories
Palestinian territories
The Palestinian territories comprise the West Bank and the Gaza Strip. Since the Palestinian Declaration of Independence in 1988, the region is today recognized by three-quarters of the world's countries as the State of Palestine or simply Palestine, although this status is not recognized by the...
(which would have required the approval of Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
) failed, since no country would admit Al-Kateb due to his Palestinian background.
Al-Kateb then applied to the Federal Court for writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
and mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, demanding that immigration officials comply with section 198 of the Migration Act which required that Al-Kateb, because his application for a visa had been rejected, be removed from the country "as soon as reasonably practicable". However, those applications were dismissed. Al-Kateb then sought writs of habeas corpus and mandamus on the basis that he was being unlawfully detained, and although the judge found that "removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future", his application was dismissed. However, a case with substantially identical facts, decided twelve days later by a Full Court of the Federal Court, resulted in the release of another detainee, Akram Al Masri.
Finally, Al-Kateb appealed the decision against him to a Full Court of the Federal Court, hoping that the reasoning applied in the Al Masri case (which was factually similar to his situation) would be applied to him. The appeal was removed into the High Court at the request of the then Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
Daryl Williams
Daryl Williams
Daryl Robert Williams AM QC , Australianpolitician, was a Liberal member of the Australian House of Representatives from March 1993 to October 2004, representing the Division of Tangney, Western Australia.-Biography:...
, under provisions of the Judiciary Act 1903
Judiciary Act 1903
The Judiciary Act 1903 regulates the structure of the Australian judicial system and invests federal Australian courts with jurisdiction. Its passage, on 25 August 1903, established the High Court of Australia...
. Pending the appeal, Al-Kateb was released in April 2003, by consent of all parties, on an interlocutory
Interlocutory
Interlocutory is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue...
order by the Federal Court. The case was argued alongside two other cases which also concerned immigration detention and hearings were held on 12 November and 13 November 2003.
The respondents in the case were all members of the Government of Australia, including two officials in the Department of Immigration, Multicultural and Indigenous Affairs, and the then Minister for Immigration, Phillip Ruddock, and were represented by the Solicitor-General of Australia
Solicitor-General of Australia
The Solicitor-General of the Commonwealth of Australia is the Second Law Officer to the Attorney-General of Australia. The holders of this office are not members of parliament....
, David Bennett. The first named respondent, Philippa Godwin, was Deputy Secretary of DIMIA. Al-Kateb was represented by Claire O'Connor, from the Legal Services Commission of South Australia.
Arguments
The question in the case was whether Al-Kateb's continued detention was lawful. That question involved several issues, namely whether the provisions of the Migration Act allow a person to be detained even if they have no prospect of being removed from Australia, and if they did, whether those provisions were then lawful under the Constitution of Australia.Indefinite detention
Since Al-Kateb's application for a visa was rejected, he was classified as an unlawful non-citizen. Section 196 of the Migration Act provides that unlawful non-citizens can only be released from immigration detention if they are granted a visa, deported, or removed from Australia. Section 198(6) of the Act requires immigration officials to "remove [from Australia] as soon as reasonably practicable an unlawful non-citizen".One possible interpretation of these provisions is that unlawful non-citizens should be kept in detention for as long as necessary to remove them, and that if removing them never became practicable, that they would be detained until death. In contrast, Al-Kateb argued that the provisions only allowed unlawful non-citizens to be detained while removal was a practical possibility, and that if removal was not a practical possibility, then they should be released from detention, at least while it remained impractical.
Much of the argument for Al-Kateb centred on the fact that he was a stateless man. Kateb's lawyer, O'Connor, noted that the provisions in the Migration Act about refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
s were based on the United Nations Convention Relating to the Status of Refugees, both of which overlooked the situation of stateless persons. Several exchanges during the hearings illustrated the way in which the usual processes of the immigration system were not adapted well, if at all, to dealing with stateless people. In one such exchange, O'Connor referred to Al-Kateb both by his name and by the identifier used on the formal documents, "SHDB" (in matters concerning asylum seekers, names are usually suppressed in order to prevent persecution should they return to their country of origin). After some debate about whether to suppress Al-Kateb's name, Justice Kirby said that "there often is a very good reason... because people suffer great risks if their name goes on the Internet that that will become known to the country that they want to avoid," to which Al-Kateb's lawyer replied, "That is correct, but, of course, with Mr Al-Kateb there is no country."
The respondents argued that the provisions required that unlawful non-citizens be detained until their removal, and that the purpose of removal, on which the detention was founded, did not cease to exist just because it was not practicable in the foreseeable future to carry out that purpose. They made what was referred to as "the 'never say never' proposition", that although securing a person's removal or deportation from Australia may be difficult, and "often it takes years of diplomatic negotiation before a country is prepared to accept someone... it is very hard to imagine a case where the purpose of removal or deportation is one that can never occur." Although the respondents did not challenge the finding of fact in the Federal Court that there was no real possibility of Al-Kateb's removal in the foreseeable future, they argued that the test applied to reach that decision "fails to take into account... the difficulties and the fact that things can change."
Non-judicial detention
The issue of whether the Act was constitutionally valid revolved around the fact that immigration detention is a form of administrative detention, or detention imposed by the executive branch of government. Detention generally is considered to be a judicial function, which can be exercised only by courts, pursuant to Chapter III of the Australian Constitution. However, there are certain exceptions which allow non-judicial detention, such as detention in order to effect an arrestArrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
, or detention for quarantine
Quarantine
Quarantine is compulsory isolation, typically to contain the spread of something considered dangerous, often but not always disease. The word comes from the Italian quarantena, meaning forty-day period....
purposes. Courts in Australia have also held that, generally, detention of non-citizens for immigration purposes is also valid.
In this situation, the court had decided in previous cases that immigration detention, for the purposes of processing and removal, did not infringe on Chapter III. Al-Kateb argued that if indeed the provisions of the Migration Act extended as far as to allow the indefinite detention of people like him, then it would have gone beyond those valid purposes and would infringe Chapter III. That is, non-judicial detention is permitted for the purposes of facilitating the removal of unlawful non-citizens, and if the prospects of removal are remote or impracticable for the reasonably foreseeable future, then the detention can no longer be considered to be for the purpose of removal. Al-Kateb's argument in this respect relied on a decision of the Federal Court in another case, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, in which a Full Court of the Federal Court found that a person in a very similar situation to Al-Kateb was entitled to be released.
The respondents focused on the case in which this system of exceptions was first articulated, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs. The concept of detention as an exclusively judicial function was clearly articulated by only three judges out of seven, Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
, Deane
William Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
and Dawson
Daryl Dawson
Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...
, and although in later cases that central concept was generally agreed with, their list of exceptions was not. The respondents focused on Justice Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
's decision in Chu, in which she said:
"Detention in custody in circumstances not involving some breach of the criminal law and not coming within well-accepted categories of the kind to which Brennan, Deane and Dawson JJ refer is offensive to ordinary notions of what is involved in a just society. But I am not presently persuaded that legislation authorizing detention in circumstances involving no breach of the criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch.III."
The respondents also noted that Gaudron made similar comments in the Stolen Generations case
Kruger v Commonwealth
Kruger v Commonwealth 190 CLR 1, also known as the Stolen Generation Case, is a High Court of Australia case that deals with any implied right to legal equality, and the section 116 prohibition on the establishment of a religion.- Background :...
, which also considered non-judicial detention in the context of Aboriginal children who were forcibly removed from their parents' care
Stolen Generation
The Stolen Generations were the children of Australian Aboriginal and Torres Strait Islander descent who were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments...
. For this reason and others, they argued that the power to detain people for the purposes of criminal trial and punishment (as opposed to detention generally) was clearly a judicial function, but there is no general rule and other powers to detain may not offend Chapter III.
Judgment
The ultimate decision, reached by a majority of four judges to three, was that the Migration Act did permit indefinite detention. Each judge delivered a separate judgment with Justices McHughMichael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
, Hayne
Kenneth Hayne
Kenneth Madison Hayne AC is a Justice of the High Court of Australia which is the highest court in the Australian court hierarchy.-Education and professional life:...
, Callinan
Ian Callinan
Ian David Francis Callinan, AC, QC is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Education:...
and Heydon
Dyson Heydon
John Dyson Heydon AC QC is a Justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Education:...
forming the majority
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
, although Justice Heydon agreed entirely with Justice Hayne, and offered no extra reasoning. Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
and Justices Gummow
William Gummow
William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
and Kirby dissented
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, finding instead that the Migration Act should not be interpreted to permit indefinite detention.
Indefinite detention
Justice Hayne delivered the leading judgment for the majority. On the question of whether the Migration Act allowed people in Al-Kateb's situation to be detained indefinitely, he said:
"...the most that could ever be said in a particular case where it is not now, and has not been, reasonably practicable to effect removal, is that there is now no country which will receive a particular non-citizen whom Australia seeks to remove, and it cannot now be predicted when that will happen."
He said that because the removal or deportation of people always involves some degree of uncertainty, then the interpretation of the relevant provisions in the Migration Act could not proceed on the assumption that removal is always possible. He concluded that:
"...even if, as in this case, it is found that 'there is no real likelihood or prospect of [the non-citizen's] removal in the reasonably foreseeable future', that does not mean that continued detention is not for the purpose of subsequent removal."
Justice McHugh stated simply that the language of the sections was not ambiguous, and clearly required the indefinite detention of Al-Kateb. He said that the requirement that people be removed "as soon as reasonably practicable" was directed at limiting the duration of detention to as little as necessary, but it did "not mean that the detention... is limited to a maximum period expiring when it is impracticable to remove or deport the person."
Chief Justice Gleeson, in dissent, said that in interpreting legislation, the courts "do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language". He concluded that the provisions requiring that unlawful non-citizens be detained were ambiguous in that in a situation such as Al-Kateb's, where it became impossible to fulfil the purpose for which he was detained, the law was not clear as to whether the result is that the detention should be suspended until the purpose becomes possible again, or that the detention should continue indefinitely. The Act did not deal with a situation like Al-Kateb's. Gleeson said:
"In making that choice I am influenced by the general principle of interpretation stated above. I am also influenced by the consideration that the detention in question is mandatory, not discretionary. In a case of uncertainty, I would find it easier to discern a legislative intention to confer a power of indefinite administrative detention if the power were coupled with a discretion..."
Accordingly, he found that a proper construction of the provisions of the Act would not permit Al-Kateb's detention to continue indefinitely.
Justice Callinan, who was in the majority, also discussed the purpose of detention, in obiter dicta
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
. He said that detention of non-citizens for the purposes of deportation may not be the only form of detention that would be within the federal parliament's aliens power, rather "it may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable."
Non-judicial detention
The second issue was whether indefinite detention for migration purposes infringed on Chapter III of the Australian Constitution. While every judge discussed this issue, only three judges, Justices McHugh, Hayne and Heydon, found it necessary to make a final decision on the issue. They all reached the same conclusion, that the detention scheme was constitutional.Justice Hayne concluded that the detention scheme in the Migration Act did not contravene Chapter III because, fundamentally, it was not punitive. The Act did not make being in Australia without a visa an offence (although it had been in the past), and in reality he considered the mandatory detention scheme to be not that different from a system in which all people were prevented from entering Australia without permission at all.
Justice McHugh also emphasised that immigration detention was not punitive, saying:
"A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive."
McHugh suggested that detention for a non-punitive purpose could still offend Chapter III if it prevented a court "from determining some matter that is a condition precedent to authorising detention." However, that was not the case here.
In dissent, Justice Gummow recognised that "the focusing of attention on whether detention is 'penal or punitive in character' is apt to mislead", and emphasised the purpose of detention as the fundamental criterion by which non-judicial detention was allowed in previous cases. He said that "it cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III."
Constitutional interpretation
In addition to the substantive issues in the case, there was also more general historical and theoretical issues involved. During Justice McHughMichael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
's final years on the court, he and Justice Kirby expressed differing views on constitutional interpretation, and particularly on the role of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and principles of human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
in that process. In this case, the two judges continued that debate.
Justice McHugh drew analogies between the legislation at issue in the case, and previous legislation which had authorised indefinite administrative detention, such as the arrangements under the War Precautions Act 1914
War Precautions Act 1914
The War Precautions Act 1914 was an Act of the Parliament of Australia which gave the Government of Australia special powers for the duration of World War I and for six months afterwards.-Provisions:...
. Regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
s made under that and other acts allowed the internment
Internment
Internment is the imprisonment or confinement of people, commonly in large groups, without trial. The Oxford English Dictionary gives the meaning as: "The action of 'interning'; confinement within the limits of a country or place." Most modern usage is about individuals, and there is a distinction...
of several thousand people, including German Australian
German Australian
German religious refugees represented the first major wave of German settlement in Australia, arriving in South Australia in 1838. Some were active as missionaries and explorers in Australia from early in the 19th century, and German prospectors were well-represented in the 1850s gold rushes...
s during World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
and Japanese Australian
Japanese Australian
Japanese Australians are people of Japanese ancestry who are resident in Australia, either through birth or immigration.-Demography:In the 2006 Census 30,778 Japanese-born residents were counted in Australia. This number excludes Australian-born persons of Japanese ancestry, and Japanese in...
s during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. McHugh noted that those arrangements had been challenged, and upheld, in the High Court (for example in the 1915 case of Lloyd v Wallach), and emphasised that at no time had anyone questioned that detention for protective purposes, as opposed to punitive purposes, would conflict with Chapter III. He concluded that although the situation at hand was "tragic", the courts were not at liberty to question the propriety of decisions made by the Parliament of Australia on moral or human rights grounds, given the absence of a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
in Australia.
Justice Kirby retorted that "'Tragic' outcomes are best repaired before they become a settled rule of the Constitution." He also drew a historical analogy, referring to the 1951 Communist Party case
Australian Communist Party v Commonwealth
Australian Communist Party v The Commonwealth 83 CLR 1, also known as the Communist Party Case, was a legal case in the High Court of Australia described as "undoubtedly one of the High Court's most important decisions."- Background :...
where the High Court rejected attempts by the Menzies
Robert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
government to outlaw the Australian Communist Party
Communist Party of Australia
The Communist Party of Australia was founded in 1920 and dissolved in 1991; it was succeeded by the Socialist Party of Australia, which then renamed itself, becoming the current Communist Party of Australia. The CPA achieved its greatest political strength in the 1940s and faced an attempted...
. After noting McHugh's recent praise of the decision in a speech, Kirby said:
"We should be no less vigilant than our predecessors were. As they did in the Communist Party Case, we also should reject Executive assertions of self-defining and self-fulfilling powers. We should deny such interpretations to federal law, including the Act... This Court should be no less defensive of personal liberty in Australia than the courts of the United States, the United Kingdom and the Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
for Hong KongHong KongHong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
have been, all of which have withheld from the Executive a power of unlimited detention."
Referring to the cases in which the High Court had upheld the wartime legislation allowing indefinite administrative detention, Kirby said that equivalent decisions in other countries had come to be regarded as embarrassing and incorrect, and should be likewise regarded in Australia. While conceding that the scope of the Parliament's powers with respect to defence will be greater in wartime than in peacetime, Kirby said that they could not extend so far as to displace fundamental constitutional requirements such as those in Chapter III.
Finally, Kirby also suggested that there was much scope for expanding the reach of the limitations on legislative and executive power imposed by Chapter III, and drawing on another paper by McHugh, argued that this ought to extend to the protection of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights as implicit constitutional rights, in the absence of an explicit bill of rights.
Consequences
The decision sparked much controversy about the scope of the mandatory detention laws. Along with the two other immigration detention decisions handed down on that day, the case prompted several political leaders, including the then Federal President of the Australian Labor Party
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
Carmen Lawrence
Carmen Lawrence
Carmen Mary Lawrence is a retired Australian politician; a former Premier of Western Australia and the first woman to become Premier of a State of the Commonwealth of Australia....
, and Australian Democrats
Australian Democrats
The Australian Democrats is an Australian political party espousing a socially liberal ideology. It was formed in 1977, by a merger of the Australia Party and the New LM, after principals of those minor parties secured the commitment of former Liberal minister Don Chipp, as a high profile leader...
leader Senator Andrew Bartlett
Andrew Bartlett
Andrew John Julian Bartlett is an Australian politician. He was formerly an Australian Democrats member of the Australian Senate from 1997 to 2008, representing the state of Queensland. He was the leader of the Democrats from 2002 to 2004, and deputy leader from 2004 to 2008.-Early life and...
, to call for an Australian bill of rights. The executive director of the Sydney Institute
Sydney Institute
The Sydney Institute, founded in 1989, is a privately funded, conservative, Australian current affairs forum. The Sydney Institute took over the resources of the Sydney Institute of Public Affairs which ceased activity in the late 1980s...
, Gerard Henderson
Gerard Henderson
Gerard Henderson is a conservative Australian newspaper columnist for The Sydney Morning Herald.. He is also Executive Director of the Sydney Institute, a privately funded current affairs forum. His wife Anne Henderson is Deputy Director.-Education:Henderson attended the Jesuit Xavier College in...
, said that the case demonstrated "the need for empathy in public policy".
However, the case also aroused controversy about the court itself. David Marr
David Marr (journalist)
David Ewan Marr is an Australian journalist, author, and progressive political and social commentator. His areas of expertise include the law, Australian politics, censorship, the media and the arts...
described the four to three decision as indicating a new division in the composition of the court, the "liberty divide", and noted that the result on the liberty question moved the court in the opposite direction to the contemporary trends of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
and the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
. Arthur Glass observed that the minority judges began their judgments from the position that indefinite non-judicial detention and the curtailment of personal freedom were troubling consequences, and noted that "as is not uncommon in statutory construction, where you start from is critical to where you end up." Marr accused the majority of deciding that "saving Australia from boat people
Boat people
Boat people is a term that usually refers to refugees, illegal immigrants or asylum seekers who emigrate in numbers in boats that are sometimes old and crudely made...
counts for more than Al-Kateb's raw liberty."
The controversy resulted in pressure on the new Immigration Minister Amanda Vanstone
Amanda Vanstone
Amanda Eloise Vanstone is a former Australian politician and a former Ambassador to Italy. She was a Liberal Senator for South Australia from 1984 to 2007, and held several ministerial portfolios in the Howard Government. After her resignation from the Senate in 2007, she served as the Australian...
, who agreed to review the cases of twenty-four stateless people in immigration detention, and ultimately granted bridging visas to nine people including Al-Kateb, allowing them to be released into the community. However, the conditions of the bridging visas did not permit holders to work, study, obtain social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
benefits or receive healthcare from Medicare
Medicare (Australia)
Medicare is Australia's publicly funded universal health care system, operated by the government authority Medicare Australia. Medicare is intended to provide affordable treatment by doctors and in public hospitals for all resident citizens and permanent residents except for those on Norfolk Island...
, and Al-Kateb remained entirely dependent on donations from friends and supporters to survive. Al-Kateb said of his situation, "We [are] just walking in a big detention. And we are all the time worried that they will send us back to detention again… It's like a death punishment."
In a 2005 speech to the Law Society of the University of Sydney
University of Sydney
The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania...
, Justice McHugh reiterated his view of the case as a tragic situation, and said that it was necessary for "the informed and impassioned" to seek reforms to legislation to protect individual rights, since the absence of a bill of rights limited the ability of the courts to protect rights. McHugh said that cases in countries such as the United Kingdom, in which courts had found that indefinite administrative detention was not lawful, were based on bills of rights or other instruments such as the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, and lamented that without such instruments, Australian courts are "not empowered to be as active as the Supreme Court of the United States or the House of Lords in the defence of the fundamental principles of human rights."
In response to McHugh's speech, Chief Justice Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
said that the issue of whether or not Australia should have a bill of rights was a purely political one, and not a matter for the courts. Gleeson said that while he had personal political views on the matter, "It doesn't serve the community for a serving Chief Justice to enter that arena."
Academic response
In academic circles the case is generally seen as an example of the court taking two different approaches to statutory interpretationStatutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
, with the legalistic
Legalism (Western philosophy)
Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context...
approach of the majority judges in contrast with the purposive
Purposive theory
Purposive theory is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism or statutory derogation, two other prominent common law interpretation...
approach of the minority judges.
Christopher Richter suggested that the majority's legalistic approach, while yielding a workable construction of the provisions of the Migration Act, resulted in a dangerous situation in this case because the Act did not specifically address the situation of stateless persons, and the literal approach did not allow for gaps in the legislation to be filled.
Matthew Zagor suggests that there are various assumptions about the constitutional relationship between the branches of government implicit in these two different approaches. He argues that the majority, particularly Justice Callinan
Ian Callinan
Ian David Francis Callinan, AC, QC is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Education:...
, preferred the plain meaning of the Migration Act because for them "the key principle at play is simple: the Court should not frustrate Parliament's purpose or obstruct the executive." Zagor also comments on the irony
Irony
Irony is a rhetorical device, literary technique, or situation in which there is a sharp incongruity or discordance that goes beyond the simple and evident intention of words or actions...
that the supposedly legalistic conclusion reached by the majority is at odds with a prior High Court decision led by Australia's most prominent legalist, Chief Justice Owen Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
, in which he implied a temporal limit onto World War II era legislation which also included a scheme of executive detention.
Some commentators, such as Juliet Curtin, have noted that both the majority and minority judgments, except for that of Justice Kirby, focused almost exclusively on Australian law and did not consider either international law or decisions from other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries. Curtin argues that this attitude to international jurisprudence, which included decisions of the Supreme Court of the United States and of the House of Lords, demonstrates an "insular disregard for the principles of international law" on the court's part.
Several commentators have expressed the view that the decision has produced confusion and uncertainty with respect to constitutional restrictions on executive power in this area. Matthew Zagor notes that while the three minority Justices in this case, and Justice Callinan in another case, have expressed their support for the existing test in Chu Kheng Lim (that non-punitive detention is constitutionally permissible where it is "reasonably capable of being seen as necessary"), the test was not in fact used by the majority in this case to conclude that the detention here was permissible. He also points out that in later cases, only Justice Kirby seemed to uphold the 'vibe' of the Chu Kheng Lim test, with Chief Justice Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
and Justice Gummow
William Gummow
William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
attempting to separate the character of detention from its consequences (suggesting that detention which is punitive in effect may not necessarily also be punitive in character). Finally, Zagor argues that of the Justices who questioned the Chu Kheng Lim test, none were able to provide a coherent alternative to substitute for it.